Fitel Lucent Technologies

46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FiteJ/Lucent Technologies, Inc. and Communications Workers of America, Local 3218, AFL-CIO. Case IO-CA-29626 August 13, 1998 DECISION AND ORDER By CHAIRMAN GOULD AND MEMBERS LIEBMAN AND HURTGEN On February 9, 1998, Administrative Law Judge Robert C. Batson issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record I in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, FitellLucent Technologies, Inc., Carrollton, Georgia, its I The Respondent filed a motion to supplement the record, and the General Counsel filed an opposition to the motion. The Respondent seeks to introduce a 1996 disciplinary report that it did not introduce at the unfair labor practice hearing. "Newly discovered evidence is evi- dence which was in existence at the time of the hearing, and of which the movant was excusably ignorant. A motion seeking to introduce evidence as newly discovered must also show facts from which it can be determined that the movant acted with reasonable diligence to un- cover and introduce the evidence." Owen Lee Floor Service, 250 NLRB 651 fu. 2 (1980). To prevail on its motion, Respondent must show that it acted with the diligence required to establish that it was excusably ignorant of the existence of the report that was at all times in its sole possession and control. The Respondent asserts that the report was not found before the hearing despite a diligent search of its records. That assertion falls short of the requisite showing. Furthermore, the Respondent's motion fails to demonstrate that the introduction of the 1996 disciplinary report would require a different result than that reached by the judge. The Respondent's motion is therefore denied. See $cc. 102.48(d)(l) of the Board's Rules and Regulations; Opportu- nity Homes, 315 NLRB 1210 fu. 5 (1994), enfd. 101 F.3d 2525 (6th Cir. 1996); Owen Lee Floor Service, supra. 2 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponder. ance of all the relevant evidence convinces us that they arc incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. J We shall modilY the judge's recommended Order in accordance with the Board's decision in Excel Container. Inc., 325 NLRB 17 (1997). Member Hurtgen agrees with his colleagues that the Respondent's treatment of employee Keith Horsley violated Sec. 8(a)(1) amd (3) of the Act. However, he believes that the Respondent's disciplinary write- up of Horsley for tardiness on September 13, 1996, was legitimate. Accordingly, he would not order the Respondent to expunge that write- up from its files. Member Hurtgen also agrees that the Respondent's conduct toward employee Joel Snyder violated Sec. 8(a)(I) of the Act, but he does not pass on the question whether it also violated Sec. 8(a)(4). 326 NLRB No. 11 officers, agents, successors, and assigns shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e). "(e) Within 14 days after service by the Region, post at its Carrollton, Georgia facility copies of the attached notice marked 'Appendix. '27 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 6, 1996." Katherine Chahrouri, Esq .• for the General Counsel. Walter 0. Lambeth Jr., and Douglas H. Duerr, Esqs. (Elarbee, Thompson & Trapnell), of Atlanta, Georgia, for the Re- spondent. DECISION STATEMENT OF THE CASE ROBERT C. BATSON, Administrative Law Judge. This casel was tried in Atlanta, Georgia, on June 16, 1997, on a complaint, dated May 12, 1997, issued pursuant to a charge filed Septem- ber 20, 1996,2 by Communications Workers of America, Local 3218, AFL"(:IO (the Union). The complaint, as amended at the hearing, alleges that FiteULucent Technologies, (the Respon- dent). violated Section 8(aXI) of the Act by threatening to dis- cipline and to discharge its employee, Keith Horsley, because of his union activities; violated Section 8(aXI) and (3) of the Act by terminating Horsley for reasons proscribed by the Act; and violated Section 8(aXI) and (4) of the Act for having threatened to disciplinarily writeup and suspend its employee, Joel Snyder, for having attempted to take time off from work pursuant to subpoena served by the General Counsel in order to attend the hearing in this matter. All parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and cross-examine wit- nesses and to file briefs. Briefs, filed by the General Counsel and Respondent, have been carefully considered. On the entire record/ including my observation of the wit- nesses and their demeanor, I make the following I The caption appears as amended at the hearing. 2 All dates below arc within 1996 unless otherwise indicated. J The unopposed motions by counsel for the General Counsel and Respondent to correct Ihe transcript record of this proceeding, respec- tively dated August 27 and 29. 1997, hereby are granted and received in evidence as G.C. Exh. 17 and R. Exh. 25.